Alimony Reduction Based on Disability

Posted on Saturday, June 18th, 2011
Theodore Sliwinski, Esq.

Alimony Reduction Based on a Disability

1. Can I have my alimony reduced because I was declared disabled?

Yes you certainly have a reasonable chance to win your alimony reduction motion shot. A recent illustrative case is Widney v. Widney, DOCKET NO. A-0128-09T3. Here, the husband filed a motion to reduce his alimony because he claimed he was disabled. The trial court denied his motion. Therefore, he appealed. On appeal, the Appellate Division, remanded the case to the trial court to consider plaintiff’s medical evidence of his disability, and any other evidence pertinent to his capacity to earn income.  On appeal, the Appellate Division, remanded the case to the trial court to consider plaintiff’s medical evidence of his disability, and any other evidence pertinent to his capacity to earn income.

A background of the case is as follows. The parties were married in 1984 and divorced in 2004. Two sons were born of the marriage, and they were both emancipated. The parties also raised defendant’s daughter from a prior marriage. Throughout the marriage, the plaintiff operated a tree trimming business as a sole proprietor. His work included substantial physical exertion in climbing and cutting trees and other manual tasks of the job. The plaintiff suffered injuries to his back, and he was also was admitted to a psychiatric hospital near the end of the marriage.

At the time of their divorce in 2004, the parties negotiated a PSA. The plaintiff agreed to pay defendant a total of $4,000 per month in alimony and child support. This amount consisted of permanent alimony of $2,500 per month and child support of $1,500 per month. The support obligation was based on gross income of $110,000 per year attributed to plaintiff and $15,000 per year to defendant. More than half of plaintiff’s income at the time of the PSA consisted of disability benefits, that he was receiving in lieu of business income through insurance policies he had obtained on himself and his business.

Soon after the parties were divorced in 2004, the plaintiff filed a motion to reduce his alimony payments. The grounds of the Lepis motion was that on the ground that his business income was substantially less than the $110,000 per year when he was divorced. His first two alimony reduction motions were denied in 2005.

In 2009, the plaintiff filed another motion to terminate his alimony payments on the ground that he was permanently disabled, and that could no longer earn sufficient income to make these payments. In support of his motion, he submitted a report of Dr. Gordon Donald, an orthopedic spinal surgeon, stating:

patient has debilitating symptoms of lumbar spondylosis and discogenic disease that are managed with a light exercise program. He is medically incapable of performing the core physical duties of his tree service business and is permanently disabled from such due to his spinal pathology.

The plaintiff’s motion was denied without prejudice. The motion judge citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950), and Gertcher v. Gertcher, 262 N.J. Super. 176, 177 (Ch. Div. 1992), and finding that plaintiff had only shown that his disability was temporary.

Thereafter, the plaintiff re-filed his motion to terminate or reduce alimony. In support of the motion, the plaintiff submitted a short letter dated April 20, 2009, from the State of New Jersey Department of Labor and Workforce Development, Division of Vocational Rehabilitation Services (DVRS). The letter stated that plaintiff had been found eligible for the services of the agency, meaning that he had a disability and was in need of rehabilitative services to return to work. On the morning of oral argument on his motion, plaintiff attempted to submit additional documents, but the motion judge declined to consider the late submissions.

The motion judge again denied without prejudice plaintiff’s motion on the ground that he had not shown changed circumstances warranting a modification of alimony. The order stated:

Plaintiff does not provide the Court with any new information other than he is eligible for the services of the Division of Vocational Rehabilitation Services which supports the Court’s finding that plaintiff’s disability, if any, is temporary. The Court notes plaintiff’s Vocational Rehabilitation Counselor has not determined plaintiff to be permanently disabled. Plaintiff has not established a prima facie case of changed circumstances based on a Social Security determination notwithstanding being advised by his State Vocational Rehabilitation Counselor to reapply. Golian v. Golian, 344 N.J. Super. 341 (App. Div. 2001).

Thereafter, the plaintiff promptly filed another motion for reconsideration. The plaintiff attached to the motion four new documents in response to the court’s prior rulings. He attached a letter and a certification from Cheryl Shankle, a manager at DVRS, explaining the agency’s rehabilitation program and stating that, based on the medical documentation provided by plaintiff. The motion for reconsideration was also denied. Thereafter, the defendant appealed.

In summary, the plaintiff’s motion was denied without prejudice. The motion court held that the plaintiff had only shown that his disability was temporary. Moreover, the motion judge again denied the motion on the ground that he had not shown changed circumstances warranting a modification of alimony.

On appeal, the Appellate Division held that the defendant had established a prima facie case, and that he was entitled to a plenary hearing. The court noted that the plaintiff submitted additional documentation that established a prima facie showing of a permanent disability. The court noted that the DVRS documentation, together with the certification and the report of Dr. Donald, established a prima facie showing of permanent disability that warranted a further hearing to determine the plaintiff’s ability to earn income.

Finally, it was ordered that at the plenary hearing, the trial court should consider all medical and related evidence of disability, including any contrary evidence presented by defendant. The court noted that the trial judge may require testimony by doctors or other qualified expert witnesses to establish the full nature and scope of the plaintiff’s disability. Additionally, the Appellate Division also held that the trial court should permit the parties to engage in full discovery.

2. What is the major point of the Widney case?

The major point is to never give up your up on your quest to reduce or even terminate alimony. It is important to emphasize that the family court judges usually change every two to three years. A new judge may take an entirely different view of your Lepis motion. If your motion is denied, then don’t just simply refile the same old motion. If you are truly sick or disabled, then you should supplement the motion with as much additional medication documentation as you can. The judges don’t want to just take your word for it that you are sick and disabled and that you can’t work. They want to see some hard core proof.

 

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